CASE 4: China and International Law in the 19th Century

If we can learn anything from this episode in history, it may be that words are not to be taken for granted. We have been taught that words convey meanings and that these can have positive or negative overtones. This is perhaps the most common approach to understanding language. But here we are not dealing merely with the pejorative or positive connotations of words. What we have seen in this event is the actions and effects of words—words that led to the deaths of many people and altered the course of Chinese and British history. So we need to begin thinking of words as actors on a stage. As actors, words adopt fictional identities and engage their audience in a variety of human tragedies or comedies. Although words may acquire fictional meanings, the acts generated by those words can be both real and tragic. To this day, the idea that the people of China—as a race—are somehow more suspicious of foreigners than other races is still taught in one form or another in books on China, despite the fact that there are no attempts at ethnic genocide in all of Chinese history and that antiforeign and even racist laws are easy to find in the histories of many nations in Europe, Asia, and America. The most influential and widely read source on China and the West is John King Fairbank’s Trade and Diplomacy in China. This book, which takes Chinese xenophobia as a prominent theme, has shaped the thinking of generations of politicians, military experts, and academics, but many of its claims go back to Article 51 of the Treaty of Tianjin. What would have happened had yi retained its original, eighteenth-century British translation?

A better approach may be to look carefully at historical sources, as we have done here, to discover the local motivations and dynamics that were operating on people’s behavior at the time. In the case of the Opium War, we can see that nationalism, commercial profit, and even the personal career advancement of scholars and missionaries may have played critical, if deadly, roles in the unfolding of this drama. Above all, the slipperiness of language and the malleability of translation seem to have served as a facilitating medium of multiple levels of error and deceit.

Another type of deception can come about simply from the human tendency to oversimplify things. We can see that British military technology was far more advanced to China’s in the mid-nineteenth century. British science, also, was more developed. And in the realm of international law, many of the conventions we use today were developed by British and European diplomats in response to the need to constrain or control other national powers. For these and other reasons, stories of the rise of the modern world sometimes suggest that Europeans created all facets of modern law and then brought these practices to China, but this is to oversimplify the facts. We have already seen that, although the British were very advanced in some ways, they had difficulty accepting practices in other respects that we now think of as modern, for example, the notion of the separation of church and state or the secular nature of modern law. Another idea with which they had difficulty was the notion that civil office should be assigned on the basis of competence or merit rather than birth or family connections (for more information, click HERE ).

The ideal that everyone should be able to serve in government if they have the knowledge and talent was fundamental to the traditional Chinese state and now is fundamental to what we currently think of as the modern state, yet, as late as the 1870s, British statesmen found the idea repugnant and dismissed it as “Chinese.” This and many other examples show us that modern practices as we understand them were not all developed in one place, but may have involved many nations and the competition among those nations in processes easier to think of as global than strictly national.